Vijaysinh vs Khedbrahma on 13 October, 2011

Gujarat High Court Case Information System
Print
SCA/15703/2003 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15703 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
VIJAYSINH
SHYAMSINH PAVAR - Petitioner(s)
Versus
KHEDBRAHMA
NAGRIK SAHKARI BANKLTD. & 2 - Respondent(s)
=========================================
Appearance :
NOTICE
SERVED for
Petitioner(s) : 1,
MR DEVANG VYAS for Petitioner(s) : 1,
MR NIKUL K
SONI for Respondent(s) : 1,
RULE SERVED for Respondent(s) :
2,
RULE NOT RECD BACK for Respondent(s) :
3,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 13/10/2011
ORAL
JUDGMENT

1. The
present Special Civil Application under Article 227 of the
Constitution of India has been preferred by the petitioner-original
appellant to quash and set aside the impugned order passed by the
Gujarat State Cooperative Tribunal dated 07/10/2003 in Miscellaneous
Application No. 73/2003 by which the learned tribunal has dismissed
the said application submitted by the petitioner to condone the delay
in preferring the Appeal challenging the judgment and award passed by
the learned Board of Nominees dated 23/01/2003 in Summary Lavad Suit
No. 1213/2003.

2. It
appears that being aggrieved and dissatisfied with the judgment and
award passed by the learned Board of Nominees dated 23/01/2003 in
Summary Lavad Suit No. 1213/2003, the petitioner preferred Appeal
before the Gujarat State Cooperative Tribunal and there was a delay
of approximately 193 days in preferring the Appeal and, therefore,
the petitioner submitted Miscellaneous Application No. 73/2003
requesting to condone the delay. Instead of considering whether
there was sufficient cause made out to condone the delay or not the
learned tribunal considered the Appeal on merits without giving an
opportunity to the petitioner and by the impugned order has refused
to condone the delay mainly on the ground that there is no merit in
the Appeal. In catena of decisions, the Hon’ble Supreme Court has
observed that while considering the delay condonation application,
normally the merits of the Appeal/case is not required to be
considered and if it is considered, in that case, some opportunity is
required to be given to the party to submit the case on merits even
prima facie.

3. Under
the circumstances, the impugned order passed by the learned tribunal
rejecting the application submitted by the petitioner to condone the
delay cannot be sustained and the same deserves to quash and set
aside and the matter is to be remanded to the learned tribunal for
considering the Appeal in accordance with law and on its own merits.

4. In
view of the above and for the reasons stated hereinabove, the present
petition succeeds. The impugned order passed by the learned
tribunal dated 07/10/2003 in Miscellaneous Application No. 73/2003 is
hereby quashed and set aside and the delay caused in preferring the
Appeal challenging the judgment and award passed by the learned Board
of Nominees in Summary Lavad Suit No. 1213/2003 is hereby condoned.
The learned tribunal is now to directed to decide and dispose of the
Appeal and consider the said Appeal against the judgment and award
passed by the learned Board of Nominees in Summary Lavad Suit
1213/2002 on merits. Considering the facts and circumstances of the
case, as the judgment and award passed by the learned Board of
Nominees is of the year 2003, the learned tribunal is directed to
decide and dispose of the said Appeal on merits at the earliest but
not later than nine months from the date of receipt of the present
order. It will be open for the petitioner to submit an appropriate
application for interim relief, which be considered by the learned
tribunal in accordance with law and on its own merits. Rule is made
absolute to the aforesaid extent.